E-Commerce Competition Enforcement Guide

Brazil

Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados

Introduction

E-commerce and the digital sector impose several challenges to the traditional antitrust analysis. The digitalisation of the economy, new business models and the use of multisided platforms have obliged antitrust authorities and practitioners around the globe to rethink whether traditional antitrust tools are adequate and sufficient to assess the impact of transactions in the affected markets and prosecute anticompetitive conduct.

In Brazil, although the Administrative Council of Economic Defence (CADE) has had little experience in digital competition analyses, recent merger review and investigation cases in the e-commerce, digital and other technology-related markets provide at least a good indication of how the authorities will likely approach some of the main issues posed by these sectors in ongoing and future cases.

This chapter provides an overview of CADE’s decisions in e-commerce and digital markets[2] and discusses recent trends regarding the antitrust analysis of merger cases and investigations involving such sectors.

E-commerce, digital economy and CADE’s merger review

The traditional phases of merger review in Brazil

The Brazilian Competition Law (BCL), Law No. 12,529 of 2011, is the main competition legislation in Brazil. It establishes (among other things) the structure of the Brazilian antitrust system;[3] the criteria for merger filing and the main rules regarding merger review; and the principles for the analysis of conduct cases in Brazil.

According to the BCL, a transaction is subject to mandatory notification with CADE whenever the following criteria are met: (1) the transaction has effects in Brazil; (2) the transaction is an economic concentration; and (3) the revenues of the groups involved exceed the thresholds provided by law. Under the third criterion, a given transaction will be subject to mandatory filing with CADE when at least one of the groups involved (seller or buyer) registered gross revenues in Brazil in excess of 750 million reais (US$200 million) and at least one of the other groups involved registered gross revenues in Brazil in excess of 75 million reais (US$20 million) in the previous fiscal year.

According to the BCL, mergers that result in the elimination of competition; create or strengthen a dominant position; or could result in the domination of the relevant market of goods or services should be blocked by CADE. In practice, the Brazilian authorities tend to apply the dominant position test and to deepen the analysis of transactions that result in combined market shares of more than 20 per cent in a given relevant market.

As provided in CADE’s horizontal merger guidelines, CADE’s merger analysis begins with the relevant market definition (for which different price-related tests may be applied, such as the SNNIP test). Once the relevant market is defined, CADE determines the level of concentration in the market, typically using the Herfindahl-Hirschman index. The next steps are the analysis of barriers to entry and the level of rivalry in the market, for which CADE indicates several competitive variables – such as the variation of market shares over time, price elasticity, price dispersion, economies of scale and many others. Possible coordinated effects and efficiency gains are the last steps of the typical merger analysis.

How is the digital economy changing merger review?

E-commerce and digital-driven markets (as well as technology markets in general) pose several challenges to the traditional antitrust analysis described above. New business models, such as multisided platforms, shift the analyses from a product-driven, price-and-quantity-based assessment, to a service-driven and frequently zero-priced one. In digital markets in which, for instance, products may be offered free of charge in one side of the online platform and capacity is not a driver, the competition authorities have indicated that basic merger control concepts such as mandatory filing thresholds, relevant market definition and market power may have to be revisited.

E-commerce, digital markets and relevant market definition

CADE has analysed a number of merger cases involving e-commerce, online platforms and technology markets. In most cases, CADE carried out a traditional assessment, following the regular steps of the typical merger analysis, as described above. For the purpose of this article, we have limited our research to the cases analysed after the entry into force of the BCL in 2012. In respect of e-commerce in particular, we have found 12 merger cases.[4] We also discuss below CADE’s main decisions involving digital platforms and marketplaces.

In respect of the relevant market definition in e-commerce cases, although there is not a consolidated decisional practice, most of CADE’s decisions segmented the market per sales channel (i.e., online sales and physical store sales, separately). However, CADE has already placed both online and offline sales channels under the same relevant market, depending on the characteristics of the product or service under analysis.[5]

As to the mix of products offered by the retailer, most of CADE’s decisions segmented the market by product category.[6] In only three decisions,[7] the online retail market was analysed as a whole, without further segmentation by product mix (all of which raised competition concerns that were mainly related to the vertical integration between e-commerce and logistics services).

Although CADE’s analyses on e-commerce cases have not differed significantly from those carried out in the context of other ‘regular’ markets (including the tests for the relevant market definition), in recent cases involving platforms and market places, it has begun taking into account the specific nature of the ever-changing digital economy and the challenges it imposes on competition authorities and practitioners.

For instance, in Naspers/Delivery Hero,[8] CADE expressed the idea that the traditional phases of the antitrust analysis do not necessarily apply to markets that are technology-intensive. CADE defined the relevant market as ‘online food ordering’, comprising three different business models: marketplaces, logistic specialists and dedicated platforms. When defining the relevant market, CADE took into account the two-sided nature of the market: on one side, customers that use the platform to order food online; on the other side, restaurants that offer food through the platform – both sides being interdependent.[9] In the end, CADE considered that agents in all three different business models were part of the same market.

CADE has also recognised, in Nasper/Delivery Hero, that the boundaries of relevant markets are not well defined in innovation-intensive markets. For instance, CADE’s General Superintendence (GS) concluded that Delivery Hero was not a close competitor to iFood (Naspers) and that the competitor Uber Eats, despite having a distinct business model, would exercise a higher competitive pressure. CADE also mentioned that Uber Eats’ recent entry in the Brazilian market would create an expectation of intensification of rivalry in the market as a whole.

In another recent case (Itaú/XP[10]), CADE again dealt with issues involving relevant market definition in multisided markets. Although, under a traditional relevant market definition, the case would result in moderate to low market shares in the market for institutional brokerage and asset management, CADE decided to assess the market taking into account the particularities of XP’s business model (and also its disruptive characteristic as a maverick firm, as further explained below). XP is an open platform of investments and was classified by CADE as a market place for financial products. As such, according to the Brazilian authorities, XP introduced a new model that disrupted the market and increased competition by allowing competition between many different financial products issued by different institutions under the same platform; promoting competition between such open platforms and the traditional banks; and reducing the entry barriers to the market. CADE challenged the traditional boundaries of relevant market definition and analysed the effects of the merger taking into account the perspective of both sides of the platform (issuers and consumers of financial products). Therefore, to reflect the competitive dynamics of the market, CADE analysed the vertical effects of the mergers taking into account open platforms only, while the horizontal effects were analysed in accordance with the traditional relevant market definition for institutional brokerage (i.e, considering both open platforms, such as XP, and traditional banks, which also distribute their own financial products).

Innovation, market power and competitive dynamic

Digital-driven markets are also changing the way that competition authorities assess market power in segments that are not necessarily measurable through market shares. In this respect, recent cases show that CADE has been paying attention to the specific characteristics of multisided platforms (such as network effects and multi-homing), as well as innovation. In fact, in its latest decisions CADE has put significant weight in the empirical analysis of the role of innovation in the competitive dynamics of digital markets.

In the Itaú/XP case, for instance, CADE analysed the characteristics of the market as a two-sided platform. To assess the effects of the merger and the ability to exercise market power, CADE took into account: the mutual interdependence between the issuers of financial products, at one side of the market, and consumers of financial products on the other; relatedly, the indirect network effects (typical of multisided platforms, in which the utility of one side of the platform increases with an increase in the number of users on the other side); and users’ ability to affiliate to more than one platform at both sides (multi-homing effects) – which could be hindered by exclusivity arrangements.

In that case, CADE also considered that XP’s disruptive characteristic (the GS considered XP as a maverick firm) was sufficient to justify a deeper market analysis, despite the low combined market shares resulting from the transaction under a traditional relevant market definition. According to CADE’s horizontal merger guidelines, mavericks are companies with low cost of production and low prices or those that stimulate permanent innovation in the segment in which they operate.[11] In this sense, a maverick can discipline the market by forcing prices down, independently of its market share.

Beyond the classic market share assessment, CADE has been analysing the reduction (or increase) in the incentives to innovate as a possible effect of mergers in digital markets. Although the analysis of innovation is not new (CADE’s horizontal merger guidelines include innovation as one of the variables that should be taken into account in the competitive assessment), it was not until recently that CADE has relied more intensively on innovation as an important feature of the assessment of mergers in digital, technology-intensive markets.

Innovation competition was also included in CADE’s analysis of Naspers/Delivery Hero. In that case, CADE’s GS noted that it is challenging to undertake the competitive analysis of ‘new’ digital markets. According to CADE, ‘the difficulty of applying the traditional tools begins in the discussions involving relevant market definition … it is specially challenging to analyze the competitive dynamics, identify market trends and assess rivalry or even consumer behavior in new, rapidly-changing markets.’[12] In this respect, innovation was considered crucial for the antitrust analysis of competitive dynamics in an environment of constant change.

Innovation was also taken into account by CADE in Telefônica/AG and Telefónica/GVT, in which CADE assessed whether the proposed transaction would have an impact on incentives to innovate. CADE reached the conclusion that the proposed transaction could introduce new technologies and ultimately benefit consumers. CADE has done the same exercise in other cases involving technology-intensive markets that, although not related precisely to digital markets, demonstrate that CADE has been putting considerable weight in the way that a proposed transaction changes the parties’ incentives to innovate.[13]

Therefore, the ability to innovate or to invest in research and development has been seen by CADE as a valuable parameter to analyse the impact of a proposed merger in untraditional markets that cannot be properly assessed exclusively under traditional tools.

Criteria for mandatory filing

As seen above, in Brazil, the thresholds for mandatory filing are based on the parties’ turnover. However, in a digital, data-driven economy, market power and turnover are not necessarily interconnected.

This issue has recently been raised by CADE in the analysis of Naspers/Delivery Hero. In its decision, CADE’s GS noted that iFood had been carrying out several acquisitions of small start-ups that did not meet the revenue thresholds for mandatory filing. The GS concluded that such a strategy should be closely monitored by the antitrust authority in future cases, since it could serve as a barrier to the entry (i.e, according to CADE, if every start-up is acquired by iFood, it is unlikely that a competitor would reach a point when it could exercise competitive pressure in the market).

The inadequacy of the current mandatory filing thresholds has been pointed out by CADE in other cases. In Itaú/XP, CADE noted that revenue-based thresholds may not be sufficient for innovation markets and cited a speech by Margrethe Vestager in 2016, according to which ‘when someone buys up an innovator, with a lot of good ideas but not yet much in the way of sales, we might not even have the chance to look at whether that merger will be bad for innovation.’[14] In a recent speech, CADE’s General-Superintendent Alexandre Cordeiro mentioned that many companies that are active in the digital world have no income, and that the current minimum revenue thresholds should be revisited – as well as the traditional tools and parameters for merger analyses, which may not be enough for the assessment of mergers involving multisided platforms, big data and other factors.[15]

Big data, digital economy and merger analysis

Another important feature of the competitive analysis of digital economy markets is access to big data. Some consider that access to big data is an important competitive advantage and a barrier to entry. Therefore, in merger cases involving big data issues, the competition authorities may analyse whether the access to the merging parties’ data is essential for third parties to be able to compete in a given market and whether such data is difficult to replicate (smaller players, for instance, usually have more limited capacity to collect data). On the other hand, some consider that the access to big data should not be considered as a competitive advantage as, among other things, access to data is non-rivalrous and ubiquitous, and data is widely available and inexpensive.

In Brazil, CADE has yet to face the challenges imposed by big data issues in merger analysis involving digital markets, as there have not been merger cases that have dealt with those issues directly.[16] In a recent merger case involving the creation of a credit bureau by the five largest banks in Brazil,[17] CADE considered that the access to data was essential in this market and negotiated remedies with the parties in order to guarantee non-discriminatory access to data by competitor credit bureaus. However, in this case, data represented a product in itself (third-party data), and therefore no new antitrust issues were raised. In other cases, big data was mentioned as a competitive advantage. In the ATT/TWC[18] merger, for instance, CADE mentioned that streaming services such as Netflix determine consumer preferences by using big data, which provides them with a significant competitive advantage.

Therefore, the Brazilian experience in merger cases involving e-commerce and digital markets, albeit limited, shows that CADE is likely to adapt its traditional analysis and tools as a response to the new challenges posed by the digital economy. CADE tends to undertake an empirical analysis of the competitive dynamics of the affected markets on a case-by-case basis.

Administrative persecution of anticompetitive conducts involving digital markets

The BCL broadly determines that any act, regardless of guilt, shall be considered a violation of the economic order if it has by object or is able to produce any of the following effects: limiting, restraining or injuring competition and free initiative; leading to the artificial control of the relevant market of goods or services; arbitrarily increasing profits; and constituting the abusive exercise of a dominant position.[19]

Those acts encompass both unilateral and collusive conduct, but different approaches apply to each one. Regarding unilateral conduct, as a rule, CADE adopts the ‘rule of reason’ approach to assess abuse of dominance.[20] This means that, more than the identification of conduct that is restrictive of competition, the authority shall balance the efficiencies caused by the conduct and its anticompetitive effects in order to assess its legality.[21]

On the other hand, under the per se approach, applied to the analysis of cartel cases under the BCL, certain conduct is always declared illegal and therefore subject to administrative – and also criminal – prosecution.[22]

E-commerce, digital economy and CADE’s investigations

As seen above, CADE’s analysis regarding the ‘digital economy’ encompasses subjects such as e-commerce, online platforms and other technology-related markets. Several kinds of conduct relating to online sectors have come under the Brazilian authority’s scrutiny over the past few years, mostly related to abuse of dominance. Even though CADE has no specific guidelines for the analysis of conduct in the online sector, those decisions provide an indication of CADE’s antitrust concerns and therefore can be a useful guide to those active in the digital economy. The worries expressed by CADE can give us a hint of potential points of attention that one should bear in mind when dealing with the digital economy.[23]

The goal of this section is to identify the main issues and concerns that CADE has voiced in some of its most recent relevant investigations of abuse of dominance cases related to the digital sector.

Abuse of dominance

As explained above, CADE’s analysis of abuse of dominance is based on the rule of reason approach. Therefore, apart from cartels, potentially anticompetitive conduct will be analysed with an investigative inquiry regarding its economic rationale, which will balance its positive and negative effects on the market dynamics. ‘Does the firm have a legitimate business reason for its conduct, and is it designed to benefit consumers?’, ‘is the firm adopting tactics that are designed to harm competitors?’, ‘are competitors able to compete notwithstanding the effects of the dominant firm’s conduct in the market?’ are some of the questions that may be posed by the authority.

Anticompetitive conducts and the rule of reason approach

The investigations against Google are examples of the rule of reason approach. CADE has opened four investigations against Google over the past few years, all related to allegedly discriminatory and exclusionary conduct. In October 2013, CADE launched three administrative proceedings against the company concerning: alleged ‘scraping’, through which Google would be gathering content from price comparison websites with its search engine to be used in its own downstream price comparison tool (Google Shopping);[24] the terms and conditions of the Adwords product, which were alleged to prevent advertisers from multi-homing;[25] and other alleged anticompetitive conduct related to Google Shopping.[26] In the Google Shopping case, two allegations are under investigation: (1) the company was accused of influencing the organic search on its search tool (Google Search) in order to privilege its own price comparison website (Google Shopping); and (2) the company was alleged to be applying a discriminatory display structure in Google Search for results from Google Shopping, in comparison to results from third-party price comparison websites. While results from Google Shopping are displayed as sponsored links accompanied by images of the products, results from third parties are displayed as unpaid general organic search results. Moreover, in September 2016, CADE launched a fourth investigation related to Google.[27] This concerned the allegation that Google took advantage of its dominant position in the universal search market to divert traffic to its own products, including its own local search engine ‘Google+’.

While the Google Shopping and Google+ cases are still under analysis, the GS has already recommended that the Scraping and AdWords cases be closed, since according to the investigation none of them amount to an antitrust violation. In the first case, the GS considered that there was insufficient evidence to show that the alleged conduct could harm the competitive environment or be negative to consumers. In the second one, the GS concluded that there was no causal link between the terms of the AdWords service and the fact that multi-homing was not a practice among advertisers. Therefore, the GS considered that Google’s terms did not generate negative effects to the markets’ competition.

Taking these cases as the starting point for reflection, one of the most common questions in cases involving a digital economy player with a dominant position is whether the company’s conduct is exclusionary or just the regular exercise of market power. Are the criteria for search, ranking and advertising, as well as the terms related to the use of the platform or business, reasonable, objective and non-discriminatory?

A similar line of questioning was relevant to another case – an investigation regarding the online travel agencies (OTAs), Booking, Expedia and Decolar, and their use of parity clauses (MFN clauses).[28] The OTAs were investigated for alleged abuse of dominance and anticompetitive conduct for imposing MFN clauses on hotels. The clauses prevented hotels from offering lower prices or better conditions in their own online and offline channels. CADE concluded that, although ‘wide’ parity clauses would be abusive, ‘narrow’ clauses were acceptable under Brazilian law.

In that case, the weighing of positive and negative effects to the competition landscape had a major role. In a balanced approach, CADE pointed out that MFN clauses restrain competition among OTAs by equalising prices offered to consumers and creating barriers to entry to new OTAs. However, CADE also acknowledged that MFN clauses deter free riding in the online hotel booking market, so that the parties should be allowed to use MFN clauses in relation to hotels’ direct sales through their own websites. Following this approach, the settlements between CADE and the OTAs prohibited the use of MFN clauses to prevent better sales conditions in offline channels (over the counter sales at hotels, smaller travel agencies and telephone sales) and also prevented OTAs from using MFN clauses in relation to other OTAs, but it did allow OTAs to establish parity clauses in relation to direct online channels (narrow MFN clauses).[29]

The telecom sector has also been scrutinised by CADE under a rule of reason approach. In Claro/Tim/Oi/Vivo[30] the four major Brazilian mobile services providers were investigated for allegedly anticompetitive practices through discriminatory ‘zero-rating’ practices.[31] The mobile services providers would only offer such access conditions to the most popular social media applications, such as Facebook, WhatsApp, Instagram and Twitter, which, according to the complaint, would strengthen these companies’ dominant positions, and prevent smaller players and new entrants from competing on equal conditions. CADE dismissed the case, as no evidence was found that the zero-rating practice distorted the competitive landscape.[32]

Discriminatory practices and restriction to the access of essential infrastructure

Discriminatory and exclusionary practices have also been the subject of recently opened investigations involving fintech companies. In these cases, traditional players are accused of discriminatory treatment vis-à-vis the fintechs, hampering their access to the markets in which they are active.

In Stone/Braspag, for example, Stone Pagamentos SA, which is a creditor responsible for the clearing and settlement of receivables, made representations against Braspag Tecnologia de Pagamentos Ltda, a company from Bradesco’s economic group that provides gateway services for online shopping payments.[33] According to CADE, the initial investigation brought to light evidence that, anchored in its dominant position in the gateway services to online shopping payment market, Braspag denied Stone’s attempts to contract with the gateway service platform. The refusal was based on Stone having a ‘minimal volume of transactions’ and ‘minimal number of clients’, criteria that would not have been applied to other competitors of Stone in the payment market. The main issue under CADE’s scrutiny is the alleged refusal by Braspag to give access to Stone to an infrastructure that is essential to access small and medium-size e-commerce businesses that operate through the Braspag system.

Another recently launched investigation is based on a claim from Nu Pagamentos S.A. (Nubank), a fintech active in the credit card business.[34] According to Nubank, banks hampered its access to the credit card vertical market, through the refusal to contract services as automatic debit, intraday statement and liquidating bank services. The concern lies in the alleged refusal of traditional players with clear market dominance to give access to essential infrastructure to new entrants in the credit card market.

Similarly, the Brazilian Association of Cryptocurrencies and Blockchain has claimed that traditional banks refuse to contract with cryptocurrency operators, limiting their access to infrastructure that is essential to its operation in the market.[35]

This brings us to a third question to bear in mind when dealing with players from the digital sector: are the criteria for the admission, suspension and exclusion of partners and users reasonable, objective and non-discriminatory? As seen from the cases discussed above, this issue is particularly relevant to CADE’s analysis in cases in which there is the suspicion that the refusal to contract may result in the foreclosure of access to essential infrastructure, and therefore the issue should be borne in mind by dominant companies active in digital markets.

Concerted conduct in technology-related markets

Another traditional antitrust concern in technology-related markets, which has also been under CADE’s scrunity, is the coordination by a supplier of its resellers’ activities.

Positivo Informática’s case is, for example, one of CADE’s ongoing investigations involving an alleged hub-and-spoke cartel. Positivo, a supplier of computers and IT equipment (e.g., tablets, projectors, smartphones), is being investigated for centralising and passing on sensitive information to its resellers, with the objective to direct contracts and coordinate bids. According to CADE’s investigation, Positivo’s resellers would report any business opportunity to Positivo, which would pursue the opportunity directly or would assign it to the reseller. In addition, Positivo would pass on detailed and sensitive information regarding the opportunity to the other resellers, in order to coordinate their behaviour and allow the assigned reseller to be the winning bidder. CADE considered Positivo’s arrangements to be potentially harmful for intra-brand competition, and that Positivo was possibly fixing reselling conditions to third parties and influencing the adoption of uniform conduct by competitors.[36]

New business models and CADE’s analysis

Uber has also been the subject of CADE’s investigations. The authority has opened three investigations involving the new player, all of them in some way related to its innovative business model. Two relate to alleged anticompetitive conduct by Uber,[37] and the third was initiated by Uber, which accused several taxi entities of sham litigation practice.[38] Even though all three inquiries have been closed based on the insufficiency of evidence, the cases triggered CADE’s effort to better understand Uber’s new business model. In addition to the investigations, CADE’s economic sector has carried out independent studies to analyse the disruptive business model, in order to better understand the market and properly assess its competitive dynamics. Overall, CADE has taken a considerably favourable position in relation to Uber, having recognised its pro-competitive character. CADE has recommended that local legislators be careful with initiatives to regulate Uber, in order to avoid measures that could possibly prevent the use of individual transport apps. Moreover, CADE’s economic sector has argued that a gradual deregulation of taxi activities could also be pro-competitive.

From that, we can notice an open posture of CADE in relation to new technologies and its comprehension that, for some cases, sticking to old approaches and definitions may not be sufficient for an accurate analysis of the market dynamics.

Data and potential anticompetitive practices

Another undoubtedly pressing issue in the digital economy is the use of big data and potential anticompetitive practices. In this context, the only investigation started by CADE concerning this topic, GuiaBolso/Bradesco, is still ongoing,[39] but may soon trigger the debate on the interplay between data and antitrust. GuiaBolso is a Brazilian personal finance application that accesses the personal banking information of customers (if authorised by those customers), through their internet banking connections. CADE opened an investigation against Bradesco for potential exclusionary conduct because of its resistance to allowing Guia Bolso’s access to its internet banking system, which could prevent new entrants’ access to the market. CADE has not yet issued any opinion on the topic but the case is likely to raise questions regarding the ownership, control and the right to access that information.

Considering the cases explored above, non-merger antitrust analysis so far seems to be concerned with traditional antitrust questions formulated in not-so-traditional ways.

Conclusion

In response to the global trends of the digitalisation of the economy, the rise of new business models and the growing use of multisided platforms, CADE is facing the challenge of reconsidering its merger review methods and clear space for the analysis of potentially anticompetitive conduct in these new market structures.

The recent merger review and investigation cases described above in the e-commerce, digital and other technology-related markets provide a good indication of how CADE will likely approach some of the main issues posed by these sectors in ongoing and future cases.


Notes

[1] Amadeu Ribeiro and Michelle Machado are partners, and Paula Camara and Ana Paula Tavassi are associates, at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados.

[2] For the purpose of this chapter, we have considered, as part of the digital sector, the activities comprised in the definition suggested by the International Monetary Fund, according to which ‘the digital sector covers the core activities of digitalization, ICT goods and services, online platforms, and platform-enabled activities such as the sharing economy.’ Available at: https://www.imf.org/en/Publications/Policy-Papers/Issues/2018/04/03/022818-measuring-the-digital-economy.

[3] CADE’s structure is as follows: The Administrative Tribunal for Economic Defence (Tribunal) is composed of seven commissioners and is responsible for issuing final decisions on both merger review cases and antitrust investigations. The General Superintendence (GS) is comprised of a general superintendent and two deputy superintendents that coordinate groups of case handlers organised in review units. The GS is the body that undertakes the initial review of merger cases and may issue final clearance in cases that do not raise competition concerns. When the GS concludes that the filed transaction should be either blocked or approved with conditions, it must then submit the transaction to the Tribunal for a final review. The GS is also responsible for investigating anticompetitive conducts. Upon conclusion of such investigations, the GS issues an opinion recommending that the Tribunal either close the investigation, or impose fines and other applicable sanctions on the defendants. Finally, there is the Department of Economic Studies, which provides economic support to both the GS and the tribunal.

[4] Merger Case No. 08700.004446/2017-84 (Applicants: Essilor International (Compagnie Générale d’Optique) SA and Luxottica Group SpA), Merger Case No. 08700.003690/2017-20 (Applicants: Instituto Terapêutico Delta SA and MIP Brasil Indústria e Comércio de Produtos Farmacêuticos Ltda), Merger Case No. 08700.006753/2016-19 (Applicants: Direct Express Logística Integrada SA and RBS – Zero Hora Editora Jornalística SA), Merger Case No. 08700.007762/2016-27 (Applicants: Wal-Mart Stores, Inc and Shoebuy.com). Merger Case No. 08700.005363/2016-21 (Applicants: FIP Península and W2W E-Commerce de Vinhos SA), Merger Case No. 08700.002066/2015-43 (Applicants: Aktiebolaget Electrolux and General Electric Company), Merger Case No. 08700.006068/2014-20 (Applicants: Orbeat Som & Imagem Ltda and W2W ECommerce de Vinhos SA), Merger Case No. 08700.004918/2014-56 (Applicants: B2W – Companhia Digital and Direct Express Logística Integrada SA), Merger Case No. 08700.001483/2014-98 (Applicants: Tiger and B2W), Merger Case No. 08700.004069/2013-50 (Applicants: 8M Participações Ltda and Click-Rodo Entregas Ltda), Merger Case No. 08700.003502/2016-82 (Applicants: GJP and Brasturinvest), and Merger Case No. 08700.006086/2015-93 (Applicants: CVC and B2W).

[5] In Essilor/Luxottica (CADE’s most recent e-commerce case), CADE has taken into account both possible relevant market definition scenarios – considering the online and offline sales channels separately and as a whole, single market. The Brazilian authorities ended up analysing the case under the latter. In order to define the relevant market considering the different types of sales channels, CADE took into account, among others: the fact that the percentage of the Brazilian population that has access to internet is still low; the fact that online retail is still incipient when compared to physical-store retail in Brazil; the characteristics of the products and/or services being sold (e.g., whether customers are typically required to try the product before purchasing it); that online retail channels exert more competitive pressure on physical retail channels than the opposite.

[6] For instance, in Walmart/Shoebuy (Merger Case No. 08700.007762/2016-27 – Applicants: Wal-Mart Stores, Inc and Shoebuy.com), CADE considered that ‘retail trade is segmented into large categories, encompassing multi-product retail, specialty stores, and super and hypermarkets – all of which could, eventually, offer durable goods.’

[7] See the cases mentioned above Direct/RBS, B2W/Direct and 8M/Click-Rodo.

[8] Merger case No 08700.007262/2017-76. Applicants: Naspers Ventures BV.and Rocket Internet SE). The case involved the acquisition, by Naspers Ventures (the controller of delivery food app iFood) of a stake of Delivery Active (which was also active in the Brazilian food ordering market through the platform Pedidos Já).

[9] The differences between alternative food ordering business models were also taken into consideration by CADE in the analysis of Naspers/Delivery Hero. For instance, in market places and ‘multi-restaurant platforms’, the platform simply intermediates between customer and restaurant, which is responsible for preparing the order and delivering it to the customer. In the ‘logistics specialists’ business model, however, the platform takes the order, picks it up from the restaurant and delivers it to the client (e.g, Uber Eats). Dedicated platforms, on their turn, are operated directly by each restaurant. Although all business models were placed in the same relevant market, CADE should revisit in future transactions whether dedicated platforms should indeed be included in the same market as marketplaces and logistic specialists.

[10] Merger Case No. 08700.004431/2017-16 (Applicants: Itaú Unibanco SA and XP Investimentos SA).

[12] Opinion of GS on Naspers/Delivery Hero, Merger case No 08700.007262/2017-76, Decision No 5/2018/CGAA1/SGA1/SG/CADE, page 18 (free translation).

[13] In Dow/Dupont (Merger Case No. 08700.005937/2016-61 – Applicants: The Dow Chemical Company and E.I Du Pont de Nemours and Company), CADE analysed whether the merger would reduce innovation competition, as 90 per cent of the R&D investments in the sector was concentrated in only five players. In this respect, one of the remedies that the parties negotiated with CADE was related to the preservation of the incentives to invest in innovation. In Bayer/Monsanto (Merger case No. 08700.001097/2017-49. – Applicants: Bayer Aktiengesellschaft and Monsanto Company), CADE identified possible negative consequences of the proposed transaction in what regards incentives to innovate. According to CADE, the parties’ incentives to innovate could be reduced as a result of the increase in the market concentration and of the possible overlaps between their research projects. In Halliburton/Baker Hughes and John Deere/Monsanto (Merger case No. 08700.000723/2016-07 – Applicants: John Deere Brasil Ltda. and Monsanto do Brasil and 08700.007191/2015-40 – Applicants: Halliburton Company and Baker Hughes Incorporated), CADE also raised the question of whether the merger between two strong players in their respective industries would compromise their incentives to innovate as a response to a reduction in the competitive pressure that the parties to each transaction faced from each other.

[15] Competition in the digital age: when technology and innovation disrupt antitrust analysis. IBRAC, Abdtic. São Paulo, Brazil. 31 August 2018.

[16] Although the Microsoft/LinkedIn deal included discussions involving big data in other jurisdictions, in Brazil it was analysed under the fast-track procedure and CADE’s analysis did not involve big data issues.

[17] Merger Case No. 08700.002792/2016-47 (Applicants: Banco do Brasil, Banco Bradesco, Caixa Econômica Federal, Banco Itaú and banco Santander).

[18] Merger Case No 08700.001390/2017-14 (Applicants: Time Warner, Inc and AT&T Inc.).

[19] Under the BCL, the finding of an antitrust violation does not require evidence that the conduct at issue effectively produced negative effects on competition. For such purpose, it is sufficient to show that the conduct has the potential of harming competition by way of, for example, excluding competitors from the market or allowing players to charge supra-competitive prices for their products or services.

[20] In this respect, the BCL establishes that a dominant position is presumed when a company or a group of companies is able to individually or jointly change market conditions or when it controls 20 per cent or more of the relevant market. This ‘dominance presumption’ is not absolute, however, as CADE must take into account market conditions (e.g., barriers to entry, rivalry, customers’ buying power, among others) to reach a conclusion on whether the company or group of companies indeed hold a dominant position in a specific market. The BCL also provides that the 20 per cent threshold may be subject to change by CADE for specific sectors of the economy.

[21] For cases involving resale price maintenance (RPM), CADE has determined a specific standard of evidence, applying a presumption of illegality to cases in which the restriction is practiced by a player with market power. In those cases, the authorities only have to prove the materiality of the conduct (i.e., that the conduct actually occurred), and the company or person under investigation bears the burden of proof to rebut this presumption by either demonstrating that it is impossible for the RPM to produce any damage (impossibility of exercising unilateral or coordinated power), or by proving economic efficiencies. See Case No. 08012.001271/2001-44, SKF do Brasil).

[22] As for the possible sanctions, corporate defendants shall be subject to fines for anticompetitive behaviour ranging from 0.1 per cent to 20 per cent of the gross revenues registered by the company, group or conglomerate in the fiscal year prior to the launching of the investigation in the line of business in which the infringement occurred. The BCL also provides for non-pecuniary sanctions, such as debarment from government procurement procedures for up to five years, and the publication of the administrative decision in major newspapers, among others. Directors and officers are subject to fines from 1 per cent to 20 per cent of the fine imposed on the company, provided that their willful conduct is proved. Companies are jointly and strictly liable for the involvement of their employees and executives in a cartel.

[23] Even though there is no specific antitrust rules or guidelines to the online sector, e-commerce relations are ruled by the Brazilian Consumerist Code, Decree N. 7.962/2013 and Law N. 13.543/2017.

[24] Case N. 08700.009082/2013-03. Parties: E-commerce Media Group Informação e Tecnologia Ltda, Google Inc, Google Brasil Internet Ltda.

[25] Case N. 08700.005694/2013-19. Parties: Google Brasil Internet Ltda, Google Inc, CADE Ex Officio.

[26] Case N. 08012.010483/2011-94. Parties: E-commerce Media Group Informação e Tecnologia Ltda, Google Inc, Google Brasil Internet Ltda.

[27] Case N. 08700.003211/2016-94. Parties: YELP, Inc, Google Inc, Google Brasil Ltda.

[28] Case N. 08700.005679/2016-13. Parties: Fórum de Operadores Hoteleiros do Brasil – FOHB, Expedia do BrasilAgência de Viagens e Turismo Ltda, Decolar.com Ltda, Booking.com Brasil Serviços de Reserva de Hotéis Ltda.

[29] It should be noted, however, that the narrow clauses allow hotels to offer special and better prices and conditions online if through a restricted area in their own websites.

[30] Case N. 08700.004314/2016-71. Parties: MPF – CADE. Claro SA, Tim Celular SA, OI Móvel SA e Telefonica Brasil SA.

[31] The mobile services’ providers would apply a zero-price condition to the data traffic associated with particular applications, i.e., Facebook, WhatsApp, Instagram and Twitter. Consumers would be exempt from using data packages to access determined applications, selected by the mobile services’ provider.

[32] CADE found no evidence that the zero-rating practices would be able to direct the consumers’ demand to one or another application. Moreover, the exemption of charge to navigate in such popular applications, could actually allow, in CADE’s perception, consumers to experience new applications and content, when the limits of the contracted data plan could otherwise be an impediment.

[33] Case N. 08700.001800/2017-19. Parties: CADE – Ex Officio, Braspag Tecnologia em Pagamento Ltda.

[34] Case N. 08700.003187/2017-74. Parties: Nu Pagamentos SA (Nubank), Caixa Econômica Federal, Banco do Brasil SA, Banco Itaú SA, Banco Bradesco SA, Banco Santander SA.

[35] Case N. 08700.003599/2018-95. Parties: Associação Brasileira de Criptomoedas e Blockchain, Banco do Brasil SA, Banco Bradesco SA, Banco Itaú SA, Banco Santander SA, Banco Inter SA, Banco Sicredi.

[36] Case N. 08700.008098/2014-71. Parties: Ministério Público do Estado de Santa Catarina; agents from the IT equipment and materials’ market.

[37] Case N. 08700.010960/2015-97. Parties: Comissão de Defesa do Consumidor da Câmara dos Deputados, Uber do Brasil Tecnologia Ltda. Case N. 08700.004530/2015-36. Parties: Associação Boa Vista de Táxi – Ponto 1813, Uber do Brasil Tecnologia Ltda.

[38] Case N. 08700.006964/2015-71. Parties: Diretório Central dos Estudantes Honestino Guimarães; Uber do Brasil Tecnologia Ltda; Associação Boa Vista de Táxi – Ponto 1813; Sindicato dos Permissionários de Taxi e Motoristas Auxiliares do Distrito Federal, Sindicato dos Motoristas e Trabalhadores nas Empresas de Táxi no Estado de São Paulo; Sindicato dos Taxistas Autônomos de São Paulo; Sindicato Intermunicipal dos Condutores Autônomos de Veículos Rodoviários, Taxistas e Transportadores Rodoviários Autônomos de Bens de Minas Gerais; Sindicato dos Taxistas do Distrito Federal; Associação de Assistência aos Motoristas de Táxi do Brasil; José Renan de Freitas; Sérgio Aureliano e Silva; Antônio Raimundo Matias dos Santos; Natalício Bezerra Silva; Ricardo Luiz Faedda e André de Oliveira.

[39] Case N. 08700.004201/2018-38. Parties: Ministério da Fazenda, Guiabolso Finanças e Correspondente Bancário e Serviços Ltda. The investigation was opened by CADE on 9 July 2018 and is still being conducted under a preliminary proceeding.

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